Court upholds on-campus military recruitment

Published Tuesday, March 07, 2006

WASHINGTON -- The Supreme Court unanimously upheld a federal law Monday that forces colleges and universities to permit military recruiting on campuses, despite the schools' objections to the Pentagon ban on openly gay people serving in the armed forces.

On Campus Recruitment:

OPEN CAMPUS: The Supreme Court ruled that military recruiters must be allowed on campuses that accept federal money.

THE DEBATE: Law schools and professors who disagreed with the military's "don't ask, don't tell" policy on gays challenged the federal law preventing colleges from turning away military recruiters.

NOT SETTLED: The question of whether "don't ask, don't tell" is legal or not remains; cases about it are pending in two states.

By a vote of 8 to 0, the court upheld the Solomon Amendment, which allows for federal funding to be denied to schools that do not allow military recruiters the same access given to all other employers. But in ruling that schools must provide the military the same access to students as they would for any other recruiters, the justices noted that schools are still free to protest their presence on campus.

The Forum for Academic and Institutional Rights -- a coalition of law schools and professors that formed to sue the government -- had said the law "compelled speech" that made it appear schools were endorsing the government's exclusion of acknowledged gays in the military, thus violating the schools' rights of free speech under the First Amendment.

But in writing for the court, Chief Justice John Roberts said the Solomon Amendment "neither limits what law schools may say nor requires them to say anything."

"Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy," Roberts wrote. "Nothing about recruiting suggests that law schools agree with any speech by recruiters and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies."

Justice Samuel Alito, the court's newest member, did not take part in the case.

Though a federal district court had sided with the government, an appeals court in Philadelphia reversed that decision, ruling in favor of FAIR last year and blocking enforcement of the Solomon Amendment. But Monday's Supreme Court opinion rejected each argument that had been advanced on FAIR's behalf.

"In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect," Roberts wrote.

So thorough was the court's rejection of FAIR's arguments that it ruled Congress could have achieved equal access not only indirectly, by threatening a funding cutoff, but also directly, through legislation based on its constitutional power to raise military forces. In fact, the court suggested in passing, even colleges and universities that do not receive any federal funding could be compelled by Congress to allow military recruiters.

"Congress' power in this area is broad and sweeping," Roberts wrote, "and there is no dispute in this cases that it includes the authority to require campus access to military recruiters."

So far, however, the government has chosen the more indirect approach of the Solomon Amendment. With Monday's ruling, many universities will now have to choose between their law schools' anti-discrimination principles and their dependence on federal money.

Most schools have made it clear that they could not afford to lose federal aid, which totals about $35 billion a year. Only a few schools allowed their names to be publicly attached to the lawsuit.

Supporters of FAIR took solace in passages of the opinion that noted students and others would still be free to protest military recruiters.

The decision, while closely watched, was unsurprising after the oral arguments in the case, during which the justices expressed great skepticism about equating the recruiting with protected expression. Roberts wrote that although the court held in 1977 that New Hampshire motorists cannot be compelled to display the state motto, "Live Free or Die," on license plates, in this case the government "does not require any similar expression by law schools" and "does not dictate the content of speech at all."